MONTGOMERY, Ala. (Mar. 15, 2020) – Last week, an Alabama House committee passed a bill that would end civil asset forfeiture and start the process of withdrawing the state from a federal program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
Rep. Andrew Sorrell (R-Muscle Shoals) filed House Bill 394 (HB394) on Feb. 10. The legislation would effectively end civil asset forfeiture in Alabama and replace it with a criminal forfeiture process. Under the proposed law, the state could not complete the forfeiture process without a criminal conviction in virtually all cases.
HB394 would address the policing for profit motive inherent in the current asset forfeiture process by directing all forfeiture funds after the payment of certain expenses to the state general fund. Under the current forfeiture process, law enforcement agencies keeps 100 percent of the proceeds from forfeited property, creating a strong incentive to seize.
The Institute for Justice called the Alabama forfeiture process ” among the worst in the nation.”
On March 11, the House State Government Committee passed HB394 by a 7-3 vote.
Passage of the bill would also take big steps towards closing a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ) that remains in effect today.
The legislation builds on a law signed by Gov. Kay Ivey last June, imposing strict reporting requirements for all asset forfeitures in the state, including the federal program.
While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
HB120 directly addresses the federal equitable sharing program. It reads, in part:
A law enforcement agency may not offer for adoption a seizure of property to a federal agency for the purpose of forfeiture under the federal Controlled Substances Act, Public Law 91-513 (Oct. 27, 1970), or other federal law which does both of the following:
(1) Includes U.S. currency of less than five thousand dollars ($5,000).
(2) Is seized under state law.
While we view the $5,000 threshold as too low, it would take the first step toward opting Alabama out of this federal program.
HB394 now moves to the House floor for further consideration.